United States of America v. Cynthia Lozano

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CYNTHIA LOZANO,
Defendant-Appellant.
Nos. 19-50285, 19-50286
D.C. Nos. 3:13-cr-01354-AJB-1
3:16-cr-01332-AJB-3
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted January 14, 2021**
Pasadena, California
Before: CALLAHAN and WATFORD, Circuit Judges, and RAKOFF,*** District
Judge.
Cynthia Lozano appeals the district court’s order granting the government’s
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
FILED
JAN 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Motion to Clarify Judgment Orders.1 We have jurisdiction under 28 U.S.C. § 1291
and affirm.
Lozano argues that the judgments’ omission that her two sentences were to
run consecutively is not a clerical error under Federal Rule of Criminal Procedure
36, but a judicial error under Rule 35 that had to be corrected within fourteen days
after sentencing. See Fed. R. Crim. P. 35(a).
“The only sentence that is legally cognizable is the actual oral
pronouncement in the presence of the defendant.” United States v. Munoz–Dela
Rosa, 495 F.2d 253, 256 (9th Cir. 1974). “A change made under Fed. R. Crim. P.
36 can do no more than conform the sentence to the term which the record
indicates was intended.” United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984).
Here, the district court did that and no more by including in the corrected
judgments that Lozano’s sentences were to be served consecutively. Although the
district judge misspoke and corrected himself several times about the individual
sentences, the record unambiguously indicates that he clarified no less than four
times that the sentences were to run consecutively or be a total of 175 months.
Lozano argues in the alternative that the imposition of consecutive sentences
resulted from an incorrect calculation of the Sentencing Guidelines. However, as
1 Because the parties are familiar with the facts, we restate only those
necessary to explain our decision.

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the government notes, Lozano voluntarily dismissed her appeal of her convictions
and sentencing in 2018. Lozano counters that the period for filing an appeal begins
anew when “a district court enters an amended judgment that revises legal rights or
obligations,” “even where the appeal concerns a different matter from that revised
by the district court.” See United States v. Doe, 374 F.3d 851, 853–54 (9th Cir.
2004).
However, as Doe makes clear, the amended judgment must “revise[] legal
rights or obligations.” Id. Further, “[i]t is the words pronounced by the judge at
sentencing, not the words reduced to writing in the judge’s Judgment/Commitment
Order, that constitute the legal sentence.” United States v. Bergmann, 836 F.2d
1220, 1221 (9th Cir. 1988). Here, the unambiguous sentences pronounced at the
sentencing hearing constitute Lozano’s legal obligations, and the corrected
judgments did not revise those obligations. The district court’s clarification of
Lozano’s judgments is AFFIRMED.

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